Supreme Court of the United States Innocence Network

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					                      No. 07-343

                       IN THE

Supreme Court of the United States
                 PATRICK KENNEDY,
                                               Petitioner,
                             v.

                     LOUISIANA,
                                             Respondent.


              ON WRIT OF CERTIORARI
         TO THE LOUISIANA SUPREME COURT


  BRIEF OF THE NATIONAL ASSOCIATION OF
  CRIMINAL DEFENSE LAWYERS AND TWELVE
   INNOCENCE PROJECTS AS AMICI CURIAE
        IN SUPPORT OF PETITIONER


BARBARA E. BERGMAN            STUART F. DELERY
  Of Counsel                    Counsel of Record
CO-CHAIR, AMICUS              KELLY THOMPSON COCHRAN
  COMMITTEE                   JOSHUA M. SALZMAN
NATIONAL ASSOCIATION OF       WILMER CUTLER PICKERING
  CRIMINAL DEFENSE              HALE AND DORR LLP
  LAWYERS                     1875 Pennsylvania Ave., N.W.
School of Law, MSC11-6070     Washington, D.C. 20006
1 University of New Mexico    (202) 663-6000
Albuquerque, NM 87131
(505) 277-3304
                       TABLE OF CONTENTS

                                                                              Page
TABLE OF AUTHORITIES ..........................................iii
INTEREST OF THE AMICI CURIAE ........................ 1
INTRODUCTION .............................................................. 3
ARGUMENT....................................................................... 5
I.   CHILD WITNESS TESTIMONY IS CENTRAL
     TO MOST CHILD SEXUAL ABUSE AND RAPE
     PROSECUTIONS .............................................................. 5
II. SOCIAL   SCIENCE RESEARCH DEMON-
     STRATES THAT CHILD WITNESSES CAN
     LACK THE RELIABILITY NEEDED TO SUP-
     PORT A DEATH SENTENCE .......................................... 7

     A. A Consensus In The Scientific Com-
        munity Confirms That Children Are
        Susceptible To Suggestion................................... 7
     B. Suggestive Interviewing Techniques
        Remain Common In Child Sex Abuse
        Cases ..................................................................... 14
     C. False Testimony By Children Is Not
        Readily Detectible .............................................. 17
     D. Children Have Made False Allegations
        Of Sexual Abuse Because Of Sugges-
        tion In Numerous Actual Cases........................ 21
III. EVIDENTIARY PROCEDURES EMPLOYED IN
     MANY CHILD RAPE CASES ADD FURTHER
     UNRELIABILITY .......................................................... 25
IV. CHILD RAPE CASES, THEREFORE, PRE-
    SENT SPECIAL AND UNACCEPTABLE RISKS
    OF WRONGFUL EXECUTION ...................................... 31

                                        (i)
                                      ii

          TABLE OF CONTENTS—CONTINUED
                                                                       Page
CONCLUSION ................................................................. 33
APPENDIX
                                           iii

                      TABLE OF AUTHORITIES

                                       CASES
                                                                             Page(s)
Arizona v. Youngblood, 488 U.S. 51 (1988) ................... 24
Atkins v. Virginia, 536 U.S. 304 (2002)...................... 5, 32
California v. Green, 399 U.S. 149 (1970)........................ 28
Chambers v. Mississippi, 410 U.S. 284 (1973) ........ 27, 31
Coy v. Iowa, 487 U.S. 1012 (1988) ......................... 8, 13, 26
Crawford v. Washington, 541 U.S. 36 (2004)..... 26, 27, 29
Danaipour v. McLarey, 386 F.3d 289 (1st Cir.
   2004) ............................................................................... 9
Delaware v. Fensterer, 474 U.S. 15 (1985)..................... 29
Devereaux v. Abbey, 263 F.3d 1070 (9th Cir.
   2001) ............................................................................. 23
Eddings v. Oklahoma, 455 U.S. 104 (1982) ..................... 5
Ex parte Thompson, 153 S.W.3d 416 (Tex.
   Crim. App. 2005)........................................................... 5
Fowler v. Sacramento County Sheriff’s De-
   partment, 421 F.3d 1027 (9th Cir. 2005).................... 8
Gersten v. Senkowski, 426 F.3d 588 (2d Cir.
   2005) ............................................................................. 21
Herrera v. Collins, 506 U.S. 390 (1993)............................ 4
Idaho v. Wright, 497 U.S. 805 (1990) ................................ 8
In re D.M., 822 N.E.2d 433 (Ohio Ct. App. 2004).......... 30
In re Personal Restraint Petition of Grasso, 84
    P.3d 859 (Wash. 2004) ................................................ 30
                                          iv

            TABLE OF AUTHORITIES—Continued
                                                                            Page(s)
In re S.L.G., No. A06-1254, 2007 WL 2609801
    (Minn. Ct. App. Sept. 11, 2007)........................... 28, 29
Johnson v. Mississippi, 486 U.S. 578 (1988).................... 4
Martinez-Macias v. Collins, 979 F.2d 1067 (5th
   Cir. 1992)...................................................................... 22
Maryland v. Craig, 497 U.S. 836 (1990)......... 8, 12, 25, 26
Mitchell v. City of Boston, 130 F. Supp. 2d 201
   (D. Mass. 2001)............................................................ 25
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ................... 3
People v. Bullock, 507 N.E.2d 44 (Ill. App. Ct.
   1987) ............................................................................. 25
People v. Geno, 683 N.W.2d 687 (Mich. Ct. App.
   2004) ............................................................................. 29
People v. Sharp, 825 N.E.2d 706 (Ill. App. Ct.
   2005) ............................................................................. 27
Rangel v. State, 199 S.W.3d 523 (Tex. App.
   2006), pet. for review dismissed as im-
   providently granted, No. PD-0447-06, 2008
   WL 375446 (Tex. Crim. App. Feb. 13, 2008)........... 26
Roper v. Simmons, 543 U.S. 551 (2005) ................. 1, 4, 32
Spaziano v. Florida, 468 U.S. 447 (1984)....................... 31
State v. Bobadilla, 709 N.W.2d 243 (Minn.),
    cert. denied, 127 S. Ct. 382 (2006)............................. 29
State v. Bromgard, 862 P.2d 1140 (Mont. 1993) ............ 25
State v. Foret, 628 So. 2d 1116 (La. 1993)................. 20, 21
                                            v

            TABLE OF AUTHORITIES—Continued
                                                                              Page(s)
State v. Huntington, 575 N.W.2d 268 (Wis.
    1998) ............................................................................. 30
State v. Johnson, 652 So. 2d 1069 (La. Ct. App.
    1995) ............................................................................... 6
State v. Polkey, 529 So. 2d 474 (La. Ct. App.
    1988) ............................................................................... 6
State v. Price, 146 P.3d 1183 (Wash. 2006)..................... 27
State v. Salazar, 166 P.3d 107 (Ariz. Ct. App.
    2007) ............................................................................. 28
State v. Spigarolo, 556 A.2d 112 (Conn. 1989) ............... 21
State v. Thomas, 460 S.E.2d 349 (N.C. Ct. App.
    1995) ............................................................................. 30
State v. Williams, 950 So. 2d 126 (La. Ct. App.),
    writ denied, 966 So. 2d 599 (La. 2007) ....................... 6
Stoll v. County of Kern, No. 1:1:05-cv-01059,
    2007 WL 2815032 (E.D. Cal. Sept. 25, 2007)........... 23
United States v. Bordeaux, 400 F.3d 548 (8th
   Cir. 2005)...................................................................... 26
United States v. Charley, 189 F.3d 1251 (10th
   Cir. 1999)........................................................................ 6
United States v. DeNoyer, 811 F.2d 436 (8th
   Cir. 1987)...................................................................... 30
United States v. Owens, 484 U.S. 554 (1988) ................. 28
United States v. Rouse, 329 F. Supp. 2d 1077
   (D.S.D. 2004) ............................................................... 20
Washington v. Schriver, 255 F.3d 45 (2d Cir.
   2001) ............................................................................... 8
                                           vi

            TABLE OF AUTHORITIES—Continued
                                                                             Page(s)
Williamson v. United States, 512 U.S. 594
    (1994) ............................................................................ 27

                                   STATUTES
La. Rev. Stat. Ann. § 14:42............................................... 13
La. Rev. Stat. Ann. § 15:440.2-4 ...................................... 31

                         OTHER AUTHORITIES
Ackil, Jennifer K., & Maria S. Zaragoza, Memo-
   rial Consequences of Forced Confabula-
   tion: Age Differences in Susceptibility to
   False Memories, 34 Developmental Psy-
   chol. 1358 (1998) .......................................................... 18
Anderson, Dana D., Assessing the Reliability
   of Child Testimony in Sexual Abuse Cases,
   69 S. Cal. L. Rev. 2117 (1996) ........................... 5, 9, 25
Bruck, Maggie, & Stephen Ceci, Forensic De-
   velopmental Psychology: Unveiling Four
   Common Misconceptions, 13 Current Di-
   rections in Psychol. Sci. 229 (2004) .............. 14, 16, 20
Bruck, Maggie, & Laura Melnyk, Individual
   Differences in Child Suggestibility: A Re-
   view and Synthesis, 18 Applied Cognitive
   Psychol. 947 (2004) ............................................... 14, 19
Bruck, Maggie, et al., The Child and the Law,
   in 4 Handbook of Child Psychology 777
   (Renninger & Sigel eds., 6th ed., 2006) ............... 5, 25
Bruck, Maggie, et al., The Nature of Children’s
   True and False Narratives, 22 Develop-
   mental Review 520 (2002) ......................................... 17
                                          vii

            TABLE OF AUTHORITIES—Continued
                                                                            Page(s)
Ceci, Stephen J., & Maggie Bruck, Children’s
   Suggestibility: Characteristics & Mecha-
   nisms, in 34 Advances in Child Dev. & Be-
   hav. 247 (Kail ed., 2006) ........................... 13, 17, 18, 19
Ceci, Stephen J., & Maggie Bruck, Jeopardy in
   the Courtroom (1995) ......................... 11, 12, 16, 21, 22
Ceci, Stephen J., & Richard D. Friedman, The
   Suggestibility of Children: Scientific Re-
   search and Legal Implications, 86 Cornell
   L. Rev. 33 (2000)......................................... 9, 10, 14, 15
Ceci, Stephen J., et al., Children’s Allegations
   of Sexual Abuse: Forensic and Scientific
   Issues, 1 Psychol. Pub. Pol’y & L. 494
   (1995) ............................................................................ 13
Ceci, Stephen J., et al., Unwarranted Assump-
   tions About Children’s Testimonial Accu-
   racy, 3 Ann. Rev. of Clinical Psychol. 311
   (2007) ............................................................................ 12
Cohen, Adam, The Difference A Million
   Makes, Time, June 9, 1995, at 43.............................. 22
Exonerated of Rape, Man Gets $3.5 Million,
   Chi. Trib., Jan. 12, 2008, at C4 .................................. 25
Former Convict Wins Clemency in Rape Case,
   Chi. Trib., Mar. 29, 1998, at C3 ................................. 25
Garven, Sena, et al., Allegations of Wrongdo-
   ing: The Effects of Reinforcement on Chil-
   dren’s Mundane and Fantastic Claims, 85
   J. Applied Psychol. 38 (2000) .............................. 11, 23
                                          viii

            TABLE OF AUTHORITIES—Continued
                                                                             Page(s)
Goodman, Gail S., Children’s Eyewitness Mem-
   ory: A Modern History and Contemporary
   Commentary, 62 J. of Soc. Issues 811
   (2006) .............................................................................. 9
Hayward & Mashberg, Upheaval in ’80s Put
   the Spotlight on Child Abuse, Boston Her-
   ald, Dec. 3, 1995, at 23 ................................................ 23
Hoffman, Joseph L., et al., Plea Bargaining in
   the Shadow of Death, 69 Fordham L. Rev.
   2313 (2001) ................................................................... 32
Judges, Donald P., Two Cheers for the Depart-
   ment of Justice’s Eyewitness Evidence: A
   Guide For Law Enforcement, 53 Ark. L.
   Rev. 231 (2000)............................................................ 24
Liebman, James S., The Overproduction of
    Death, 100 Colum. L. Rev. 2030 (2000).................... 32
London, Kamala, et al., Disclosure of Child
   Sexual Abuse: What Does the Research
   Tell Us About the Ways That Children
   Tell?, 11 Psychol. Pub. Pol’y & L. 194
   (2005) ...................................................................... 19, 21
Lyon, Thomas D., The New Wave in Children’s
   Suggestibility Research: A Critique, 84
   Cornell L. Rev. 1004 (1999)....................... 9, 10, 14, 17
Lyon, Thomas D., Scientific Support for Expert
   Testimony on Child Sexual Abuse Ac-
   commodation, in Critical Issues in Child
   Sexual Abuse (Conte ed., 2002).......................... 19, 20
                                           ix

            TABLE OF AUTHORITIES—Continued
                                                                             Page(s)
Malloy, Lindsay C., et al., Filial Dependency
   and Recantation of Child Sexual Abuse
   Allegations, 46 J. Am. Acad. of Child &
   Adolescent Psychiatry 162 (2007) ............................ 20
McCann, John, et al., Genital Findings in Pre-
   pubertal Girls Selected for Nonabuse: A
   Descriptive Study, 86 Pediatrics 428 (1990) ............. 6
Mosteller, Robert P., Testing the Testimonial
   Concept and Exceptions to Confrontation:
   “A Little Child Shall Lead Them,” 82 Ind.
   L. J. 917 (2007) ............................................................ 29
Myers, J., Child Witness Law and Practice
   (1987) .............................................................................. 8
Myers, John E.B., et al., Hearsay Exceptions:
   Adjusting the Ratio of Intuition to Psycho-
   logical Science, 65 Law & Contemp. Probs.,
   No. 1, 3 (2002)........................................................ 10, 12
Myers, John E.B., Myers on Evidence in
   Child, Domestic and Elder Abuse Cases
   (2005) ...................................................... 7, 11, 14, 16, 30
O’Brien, Sean D., Capital Defense Lawyers:
   The Good, the Bad, and the Ugly, 105 Mich.
   L. Rev. 1067 (2007)..................................................... 32
Poole, Debra A., & D. Stephen Lindsay, As-
   sessing the Accuracy of Young Children’s
   Reports: Lessons from the Investigation of
   Child Sexual Abuse, 7 Applied & Preven-
   tive Psychol. 1 (1998) ................................................. 15
                                           x

            TABLE OF AUTHORITIES—Continued
                                                                            Page(s)
Peterson, Carole, & Michael Bell, Children’s
   Memory for Traumatic Injury, 67 Child
   Dev. 3045 (1996).......................................................... 10
Principe, Gabrielle F., et al., Believing is See-
    ing: How Rumors Can Engender False
    Memories in Preschoolers, 17 Psychol. Sci.
    243 (2006) ..................................................................... 12
Quas, Jodi A., et al., Repeated Questions, De-
   ception, and Children’s True and False
   Reports of Body Touch, 12 Child Maltreat-
   ment 60 (2007) ................................................... 7, 13, 19
Rabinowitz, Dorothy, No Crueler Tyrannies
   (2003) ............................................................................ 23
Raeder, Myrna S., Comments on Child Abuse
   Litigation in a “Testimonial” World: The
   Intersection of Competency, Hearsay, and
   Confrontation, 82 Ind. L.J. 1009 (2007) .............. 6, 27
Ross, David F., et al., Children’s Susceptibility
   to Misidentifying a Familiar Bystander
   From a Lineup: When Younger is Better,
   30 Law & Hum. Behav. 249 (2006)........................... 24
Saywitz, Karen J., Children’s Memories of a
   Physical Examination Involving Genital
   Touch: Implications for Reports of Child
   Sexual Abuse, 59 J. Consulting & Clinical
   Psychol. 682 (1991) ............................................... 10, 16
Warren, Amye R., & Dorothy F. Marsil, Why
   Children’s Suggestibility Remains a Seri-
   ous Concern, 65 Law & Contemp. Probs.,
   No. 1, 127 (2002).............................................. 13, 15, 19
                                          xi

            TABLE OF AUTHORITIES—Continued
                                                                            Page(s)
Whitaker, Barbara, DNA Frees Inmate Years
   After Justices Rejected Plea, N.Y. Times,
   Aug. 11, 2000, at A12.................................................. 24
Younts, Diana, Evaluating and Admitting Ex-
   pert Opinion Testimony in Child Sexual
   Abuse Prosecutions, 41 Duke L.J. 691
   (1991) ............................................................................ 11
           INTEREST OF THE AMICI CURIAE
     The National Association of Criminal Defense Law-
yers (NACDL) is a non-profit organization with more
than 12,000 direct members and 35,000 affiliate mem-
bers from all 50 states.1 Founded in 1958, NACDL is
the only professional association that represents public
defenders and private criminal defense lawyers at the
national level. The American Bar Association recog-
nizes NACDL as an affiliated organization with full
representation in the ABA House of Delegates.
NACDL’s mission is to ensure justice and due process
for the accused; to foster the integrity, independence,
and expertise of the criminal defense profession; and to
promote the proper and fair administration of justice.
NACDL routinely files amicus curiae briefs on various
issues, including Eighth Amendment limitations on
capital sentences, in this Court and other courts. See,
e.g., Roper v. Simmons, 543 U.S. 551 (2005).
    The Twelve Innocence Projects, which are listed
individually in the Appendix, investigate and litigate
claims of wrongful conviction, particularly on behalf of
indigent prisoners and death row inmates for whom
postconviction DNA testing can provide conclusive
proof of innocence. Amici pioneered the post-conviction
DNA litigation model that has to date exonerated 213
innocent persons, including more than a dozen indi-
viduals wrongly convicted of non-homicide rape of a
     1
       Pursuant to Supreme Court Rule 37.6, the amici curiae cer-
tify that no counsel for a party authored this brief in whole or in
part, and that no person or party, other than amici curiae, their
members, or their counsel made a monetary contribution to the
preparation or submission of this brief. Counsel of record for all
parties have consented to the filing of this brief, and letters of con-
sent have been filed with the Clerk.
                           2

child. The Innocence Projects served as counsel or pro-
vided critical assistance in a majority of these cases,
and in the course of this work, have seen inaccurate
identifications and other failures by child witnesses
contribute to convictions of innocent people for child
rape. The Innocence Projects have an interest in en-
suring that the legal system takes proper account of the
limitations and weaknesses of child testimony. Submis-
sion of this brief is also consistent with their general
mission to prevent future wrongful convictions by im-
proving the truth-seeking functions of the criminal jus-
tice system.
                            3

                   INTRODUCTION
     Child sexual abuse and rape are among “the most
difficult crimes to detect and prosecute, in large part
because there often are no witnesses except the vic-
tim.” Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).
Because convictions for these utterly repugnant crimes
often rest principally on the testimony of children, such
cases raise difficult questions concerning the reliability
of child witnesses, the risk that trial proceedings will
inflict additional trauma on young victims, and defen-
dants’ constitutional rights to confront and cross-
examine witnesses. In recent decades, legislatures and
courts have responded to a sharp increase in reported
cases of sexual abuse and rape of minors by relaxing
various historical rules of procedure and evidence in
order to facilitate criminal prosecutions where the vic-
tims and central witnesses are children.
     Although many children, including victims of sex-
ual abuse, are able to recall events accurately and to
testify honestly about them, extensive social science
research has documented common reliability problems
with child testimony that call into question the broader
reliability of child rape convictions and sentences. The
core problem, supported by an overwhelming consen-
sus in the literature, is that children are susceptible to
suggestion in ways that adults are not. This makes
child witnesses particularly vulnerable to questioning
by parents, police, teachers, medical professionals, and
other adults who may approach an interview with pre-
conceptions and/or use suggestive questions or tech-
niques. Even well-meaning adults who interact with or
treat child victims may shape their testimony uninten-
tionally. Moreover, social science research strongly
suggests that some children who make false accusations
following suggestive interviews come to genuinely and
                            4

permanently believe their accusations, and that recan-
tation of accusations may be a normal and relatively
common phenomenon even among victims who initially
tell the truth about their abuse. In light of such behav-
iors, it is perhaps little surprise that researchers cannot
readily detect false testimony or identify particular
categories of child witnesses who are particularly sus-
ceptible to suggestion. Therefore, children may offer
convincing testimony that is so substantially shaped by
the suggestions of adults as to be unreliable.
    Allowing juries to impose the death penalty based
on evidence presenting such serious reliability con-
cerns—particularly when admitted pursuant to relaxed
evidentiary and procedural requirements—cannot be
squared with established precedent. This Court has
consistently sought to ensure that the death penalty is
applied cautiously and fairly, only to the worst of the
worst offenders. See, e.g., Roper v. Simmons, 543 U.S.
551, 568 (2005) (“Capital punishment must be limited to
those offenders who commit ‘a narrow category of the
most serious crimes’ and whose extreme culpability
makes them ‘the most deserving of execution.’” (cita-
tion omitted)).      In addition, the Court’s Eighth
Amendment decisions have repeatedly demanded
heightened reliability in capital cases in part to guard
against the risk that an innocent defendant might be
put to death. See Johnson v. Mississippi, 486 U.S. 578,
584 (1988) (“The fundamental respect for humanity un-
derlying the Eighth Amendment’s prohibition against
cruel and unusual punishment gives rise to a special
‘need for reliability in the determination that death is
the appropriate punishment’ in any capital case.” (cita-
tions omitted)); see also Herrera v. Collins, 506 U.S.
390, 407 n.5 (1993) (acknowledging “the importance of
                           5

ensuring the reliability of the guilt determination in
capital cases in the first instance”).
     Against this constitutional requirement of “meas-
ured, consistent application and fairness to the ac-
cused” in death-eligible prosecutions, Eddings v. Okla-
homa, 455 U.S. 104, 111 (1982), child rape cases lack the
reliability needed for the irremediable penalty of death.
As in Roper and Atkins v. Virginia, 536 U.S. 304 (2002),
where certain characteristics of the defendants created
special risks of wrongful execution, the Court should
hold that the Constitution categorically forbids imposi-
tion of the death penalty for child rape where no death
occurs—a heinous crime to be sure, but one in which
the evidence often relied upon creates special risks of
wrongful execution.

                     ARGUMENT
I.   CHILD WITNESS TESTIMONY I S C ENTRAL TO MOST
     CHILD SEXUAL ABUSE AND RAPE PROSECUTIONS
    Child sexual abuse convictions are often “based
primarily, if not solely, on the word of the victims in-
volved.” Anderson, Assessing the Reliability of Child
Testimony in Sexual Abuse Cases, 69 S. Cal. L. Rev.
2117, 2118 (1996). These prosecutions are frequently
“‘she said, he said’ cases that ultimately rely upon the
jury’s assessment of the relative credibility of opposing
witnesses.” Ex parte Thompson, 153 S.W.3d 416, 422
(Tex. Crim. App. 2005) (Cochran, J., concurring). Al-
though many jurisdictions once imposed a corrobora-
tion requirement for testimony by children in sexual
abuse cases, such rules have been abolished in nearly
every jurisdiction since the 1980s. Bruck et al., The
Child and the Law, in 4 Handbook of Child Psychology
777 (Renninger & Sigel eds., 6th ed., 2006). Accord-
ingly, convictions may now hinge entirely on the per-
                            6

ceived credibility of a child witness. See, e.g., State v.
Polkey, 529 So. 2d 474, 476 (La. Ct. App. 1988).
     Child testimony is particularly essential because
medical evidence of child sexual abuse and rape is fre-
quently unavailable, “either because of the nature of
the abuse or because children heal quickly and the
crime is often reported well after it occurred.” Raeder,
Comments on Child Abuse Litigation in a “Testimo-
nial” World: The Intersection of Competency, Hear-
say, and Confrontation, 82 Ind. L.J. 1009, 1009 (2007);
see, e.g., United States v. Charley, 189 F.3d 1251, 1263
(10th Cir. 1999) (summarizing expert testimony that
physical exams appear normal in “90 percent” of sus-
pected child sexual abuse cases and that it would be
surprising to find a traumatized area after more than 72
hours); State v. Williams, 950 So. 2d 126, 130 (La. Ct.
App.), writ denied, 966 So. 2d 599 (La. 2007) (summariz-
ing expert testimony that penetration often leaves no
physical evidence because child tissues heal quickly);
State v. Johnson, 652 So. 2d 1069, 1072 (La. Ct. App.
1995) (summarizing expert testimony that evidence of
trauma during child rape examinations is unusual be-
cause children heal quickly). Therefore, “the determi-
nation of sexual abuse can rarely rely on a physical ex-
amination alone and [the] consideration of all the com-
ponents of the investigation—especially the informa-
tion obtained from the child—is essential.” McCann et
al., Genital Findings in Prepubertal Girls Selected for
Nonabuse: A Descriptive Study, 86 Pediatrics 428, 438
(1990) (emphasis added).
                                7

II. SOCIAL SCIENCE RESEARCH DEMONSTRATES THAT
    CHILD WITNESSES CAN LACK THE RELIABILITY
    NEEDED TO SUPPORT A DEATH SENTENCE
    Extensive social science research demonstrates
that child witnesses are susceptible to suggestion in
ways and to a degree that adults are not. As a result of
this unique vulnerability, children can be led, inadver-
tently or maliciously, to allege that they have been
sexually abused when in fact they have not, or to mis-
identify their abuser.

    A. A Consensus In The Scientific Community
       Confirms That Children Are Susceptible To
       Suggestion
     Decades of research and dozens of studies establish
that while young children are capable of being accurate
witnesses, they are also particularly likely to confirm
allegations posed by suggestive interviewers, even
when those allegations are false.2 When confronted
with many common elements of criminal investigations,
such as leading or repeated questions and pressurized
or repeated interviews,3 many children will give—and
in some instances even come to believe—whatever they
perceive to be the account the interviewer is seeking.
Notably, this process can occur even when the inter-

    2
        To be sure, children are not “invariably suggestible.” 1
Myers, Myers on Evidence in Child, Domestic and Elder Abuse
Cases §1.10[A] (2005). The literature also establishes that many
children are capable of providing accurate testimony and that
“[c]hildren can resist suggestive questions” in some instances. Id.
     3
       “In legal contexts, exposure to repeated questions and in-
terviews is common for many child witnesses.” Quas et al., Re-
peated Questions, Deception, and Children’s True and False Re-
ports of Body Touch, 12 Child Maltreatment 60, 61 (2007).
                                 8

viewer (who might be a law enforcement officer, medi-
cal professional, teacher or parent) lacks any improper
intent and is genuinely seeking to elicit a truthful ac-
count from the child.
    Courts have recognized the unreliability of child
testimony. This Court has acknowledged in the child
abuse context the need to expose “the false accuser, or
reveal the child coached by a malevolent adult.” Coy v.
Iowa, 487 U.S. 1012, 1020 (1988).4 Justice Scalia has
likewise noted that there are “‘special’ reasons” to be
suspicious of child testimony, for “studies show that
children are substantially more vulnerable to sugges-
tion than adults, and often unable to separate recol-
lected fantasy (or suggestion) from reality.” Maryland
v. Craig, 497 U.S. 836, 868 (1990) (Scalia, J., dissenting).
Lower courts have also recognized that child testimony
can be unreliable. See Washington v. Schriver, 255
F.3d 45, 57 (2d Cir. 2001) (noting that “[a]n emerging
consensus in the case law relies upon scientific studies
to conclude that suggestibility and improper interview-
ing techniques are serious issues with child witnesses”);
see also Fowler v. Sacramento County Sheriff’s Dep’t,
421 F.3d 1027, 1039 n.7 (9th Cir. 2005) (“We note fur-

    4
       In Idaho v. Wright, 497 U.S. 805 (1990), which was not a
death penalty case, this Court cited a treatise for the proposition
that “use of leading questions with children, when appropriate,
does not necessarily render responses untrustworthy.” Id. at 819
(citing J. Myers, Child Witness Law and Practice § 4.6, pp. 129-134
(1987)). The Court nevertheless implicitly recognized that leading
questions can be very damaging to the reliability of child wit-
nesses. See id. (noting that certain safeguards, including the
avoidance of leading questions, “may well enhance the reliability of
out-of-court statements of children regarding sexual abuse,” but
declining to hold that particular interview procedures were consti-
tutionally required).
                            9

ther that fantasy by child witnesses is well-
documented.”); Danaipour v. McLarey, 386 F.3d 289,
298 (1st Cir. 2004) (noting that “statements by a young
child, even if accurately recounted by an adult, may not
reflect the truth” for reasons including coaching, re-
peated inquiry, and a child’s desire for attention).
     Indeed, within the child-development research
community, “there is an overwhelming consensus that
children are suggestible.” Ceci & Friedman, The Sug-
gestibility of Children: Scientific Research and Legal
Implications, 86 Cornell L. Rev. 33, 36 (2000); see also
Anderson, 69 S. Cal. L. Rev. at 2146 (describing a “con-
sensus in the social-science literature” on this point).
Researchers debate the quantum of suggestion needed
to alter a child’s account and, as a policy matter,
whether the benefits of eliciting recollections from child
victims and admitting them in criminal proceedings
outweigh the risk of erroneous convictions. Compare
Lyon, The New Wave in Children’s Suggestibility Re-
search: A Critique, 84 Cornell L. Rev. 1004 (1999) (ar-
guing that a class of researchers overstate the ease
with which children can be induced to make false alle-
gations of sexual abuse and understate the harms of
failing to prosecute alleged abusers), with Ceci &
Friedman, 86 Cornell L. Rev. 33 (responding to Lyon).
But even the most ardent defenders of child testimony
concede that this susceptibility of children to sugges-
tion by adults can lead to allegations of abuse against
innocent people. See, e.g., Goodman, Children’s Eye-
witness Memory: A Modern History and Contempo-
rary Commentary, 62 J. of Soc. Issues 811, 818 (2006)
(acknowledging that, in the 1990s, “[i]t became increas-
ingly clear … that there were conditions under which
                              10

children were susceptible to false suggestion, even
about child abuse”);5 Myers et al., Hearsay Exceptions:
Adjusting the Ratio of Intuition to Psychological Sci-
ence, 65 Law & Contemp. Probs., No. 1, 3, 30 (2002)
(recognizing a slew of factors that may “taint” a child’s
report).6
    Although there are differences on questions of de-
gree, there is strong support in the literature for the
proposition that several techniques, used independ-
ently, or especially in combination, can seriously impair
the reliability of child testimony:
•   Children are particularly susceptible to influence
    from leading questions. When researchers in one
    study used leading questions to ask girls whether
    they had been sexually touched during a medical
    examination, 8% of the girls falsely reported having
    been touched. See Saywitz et al., Children’s Memo-
    ries of a Physical Examination Involving Genital
    Touch: Implications for Reports of Child Sexual
    Abuse, 59 J. Consulting & Clinical Psychol. 682, 687
    (1991). Other studies have shown even more signifi-
    cant effects from leading questions. See, e.g., Peter-
    son & Bell, Children’s Memory for Traumatic In-
    jury, 67 Child Dev. 3045, 3059 (1996) (finding that
    children made roughly five times as many errors in
    response to directed questions as compared to open-
    ended ones when asked about non-abuse related but

    5
       Professor Goodman has been described as “the scholar most
favored by child advocates,” Ceci & Freidman, 86 Cornell L. Rev.
at 46, and as the “researcher-heroine of the child protection
movement,” Lyon, 84 Cornell L. Rev. at 1015.
     6
       Professor Myers is a leading defender of child testimony.
See Ceci & Friedman, 86 Cornell L. Rev. at 35.
                           11

    serious injuries). Even researchers who defend
    child testimony acknowledge that “there is no deny-
    ing that suggestive questions can undermine accu-
    racy.” 1 Myers, § 1.15[K].
•   “Children are sometimes more suggestible when
    questioned by an authority figure.” Id. at § 1.10[B].
    This may be because children believe adult author-
    ity figures are omniscient and truthful, which
    would suggest to them that their own perceptions
    are inaccurate; children may also just want to be
    accommodating to the adult. See Ceci & Bruck,
    Jeopardy in the Courtroom 258-259 (1995); see also
    Younts, Evaluating and Admitting Expert Opin-
    ion Testimony in Child Sexual Abuse Prosecu-
    tions, 41 Duke L.J. 691, 692 (1991) (noting that chil-
    dren “are susceptible to accommodating their re-
    ports of events to fit what they perceive the adult
    questioner to believe”).
•   Children can give incorrect answers when they are
    led to believe under questioning that their initial
    answers were wrong. In one study, children were
    told that they were not doing well after they had
    accurately denied that an incident had taken place.
    Those children were then nearly three times as
    likely as un-reinforced children to agree to a plau-
    sible but false suggestion posed in a follow-up ques-
    tion. Moreover, these children were more than ten
    times likelier to agree to a fantastic false sugges-
    tion. See Garven et al., Allegations of Wrongdoing:
    The Effects of Reinforcement on Children’s Mun-
    dane and Fantastic Claims, 85 J. Applied Psychol.
    38, 41-43 (2000).
•   Children may make false allegations after repeated
    interviews if they believe that authority figures
                            12

    will not accept their denials. After all, children,
    unlike adults, “are required to continue until the
    adult decides to terminate.” Ceci & Bruck, Jeop-
    ardy in the Courtroom, at 259. For instance, an
    eleven-year-old boy from Jordan, Minnesota, ac-
    cused his parents of abuse after investigators con-
    tinued to press him following his repeated denials
    of abuse over a series of interviews. He later ex-
    plained that he made the allegation because he was
    “just sick of being badgered.” See Ceci et al., Un-
    warranted Assumptions About Children’s Testi-
    monial Accuracy, 3 Ann. Rev. of Clinical Psychol.
    311, 319 (2007); see also Craig, 497 U.S. at 868
    (Scalia, J., dissenting) (referring to the “tragic” in-
    vestigations in Jordan, Minnesota).
•   An interviewer may induce a false accusation from
    a child by telling her that her friends have already
    made that same accusation. See Myers et al., 65 L.
    & Contemp. Probs., No. 1, at 30 (noting that “peer
    pressure” can be a source of “taint” in children’s
    reports). Children are also prone to recount ex-
    periences they heard from their peers as if they
    were their own. In one study, children claimed to
    be witnesses to an incident that they had only
    heard about from other students at the same rate
    as the actual witnesses. See Principe et al., Believ-
    ing Is Seeing: How Rumors Can Engender False
    Memories in Preschoolers, 17 Psychol. Sci. 243, 243
    (2006).
•   Children may make false allegations against some-
    one whom they have heard discussed in a negative
    light. One frequently cited study found that 11% of
    five- and six-year-old children, after hearing preju-
    dicial remarks regarding a particular individual,
    made false allegations against that individual and
                           13

    maintained those allegations even when challenged
    by the interviewer. See Ceci & Bruck, Jeopardy in
    the Courtroom, at 131.
•   Preschool-aged children may make allegations
    without fully comprehending what they are alleg-
    ing. See Ceci & Bruck, Children’s Suggestibility:
    Characteristics & Mechanisms, in 34 Advances in
    Child Dev. & Behav. 247, 253 (Kail ed., 2006) (not-
    ing that children may provide answers to yes or no
    questions “even though they may not know the an-
    swer or understand the question”).
•   Children may allege abuse after coaching from an
    adult. See, e.g., Ceci et al., Children’s Allegations
    of Sexual Abuse: Forensic and Scientific Issues, 1
    Psychol. Pub. Pol’y & L. 494, 506 (1995) (“No one
    familiar with the scientific research ought to doubt
    that some children could be brought to make false
    claims of sexual abuse if powerful adults pursue
    them repeatedly with [suggestive] enjoinders.”);
    see also Coy, 487 U.S. at 1020 (acknowledging the
    risk of child “false accuser[s]” and “coach[ing] by a
    malevolent adult”); cf. Quas et al., 12 Child Mal-
    treatment at 64 (finding that children instructed to
    lie can do so fairly effectively).
    Recent research indicates that the period of vul-
nerability to many of the conditions for suggestion ex-
tends well beyond preschool ages, and includes children
who are near the upper bound of Louisiana’s capital
rape statute. See La. Rev. Stat. Ann. § 14:42(A)(4).
While older children are less suggestible than pre-
schoolers, they are still significantly more suggestible
than older witnesses. See Warren & Marsil, Why Chil-
dren’s Suggestibility Remains a Serious Concern, 65
Law & Contemp. Probs., No. 1, 127, 127-131 (2002) (col-
                           14

lecting studies). “In the past few years, it has become
more apparent that … suggestibility levels remain high
throughout the elementary school years.” Bruck &
Melnyk, Individual Differences in Child Suggestibility:
A Review and Synthesis, 18 Applied Cognitive Psychol.
947, 948 (2004) (citation omitted); see Bruck & Ceci, Fo-
rensic Developmental Psychology: Unveiling Four
Common Misconceptions, 13 Current Directions in
Psychol. Sci. 229, 231 (2004) (“Susceptibility to sugges-
tion is highly common in middle childhood[.]”); cf.
Myers, § 1.10[A] (“By the time children near adoles-
cence, most children approach adult levels of suggesti-
bility.”).

    B. Suggestive Interviewing Techniques Remain
       Common In Child Sex Abuse Cases
    Despite a general awareness among child develop-
ment professionals that the testimony of child wit-
nesses can be influenced by adults, “there is good rea-
son to believe the use of highly suggestive questions
remains very common, and that these questions pre-
sent a significant possibility that children will make
false allegations even on matters such as sexual abuse.”
Ceci & Friedman, 86 Cornell L. Rev. at 36. At least
four factors support this conclusion.
    First, the existing empirical evidence confirms that
suggestive interviews continue to occur. For example,
one researcher, while disputing the overall impact of
leading questions on reports of child abuse, acknowl-
edges that “the limited observational research on real-
world interviews demonstrates that interviewers ask
few open-ended questions, many specific questions, and
some leading questions.” Lyon, 84 Cornell L. Rev. at
1036; see id (stating that across three studies, “ap-
proximately ten percent of interviewers’ questions are
                            15

‘suggestive,’ and an average interview contained from
five to ten suggestive statements”); Ceci & Friedman,
86 Cornell L. Rev. at 66 n.168 (analyzing data and con-
cluding that “some particularly troublesome tech-
niques, though usually constituting a small part of the
interaction in any given interview, are extremely com-
mon”); Warren & Marsil, 65 Law & Contemp. Probs.,
No. 1, at 144-45 (collecting studies).
     Second, although efforts have been made to train
professional interviewers to avoid interview techniques
that direct children to a particular account, this training
has often proved unsuccessful. See Warren & Marsil,
65 Law & Contemp. Probs. No. 1, at 144-145. In fact,
several studies indicate that interviewers persist in us-
ing suggestive techniques even after receiving training
instructing them in how to conduct less risky inter-
views. “Extant research thus demonstrates that inter-
viewer training is effective in reducing problematic
questioning techniques only when training is both in-
tensive and extensive, and only when it includes prac-
tice, individualized feedback, and follow-up.” Id. at 147.
     Third, suggestibility is not limited to formal inter-
views. “Suggestions may be made by parents, other
adults, or other children prior to the first formal inves-
tigative interview or between repeated forensic or
clinical interviews.” Id. at 134. Indeed, “[o]fficial in-
vestigators may be trained to avoid suggestiveness;
most parents and teachers are not.” Ceci & Friedman,
86 Cornell L. Rev. at 59. Therefore, in some cases, by
the time the professional interviewer encounters the
witness, the damage may already have been done.
    Some parental suggestion may be inadvertent or
well-intentioned. Cf. Poole & Lindsay, Assessing the
Accuracy of Young Children’s Reports: Lessons from
                                16

the Investigation of Child Sexual Abuse, 7 Applied &
Preventive Psychol. 1, 4 (1998) (citing a studying find-
ing that mild and unintentional suggestion from a par-
ent can affect children’s reports outside of the abuse
context). However, the dangers of parental suggestion
are particularly acute in cases in which child custody
and divorce are implicated. See Ceci & Bruck, Jeop-
ardy in the Courtroom, at 33 (analyzing studies and
concluding that, despite some studies to the contrary,
“the rates of false reports [of abuse] are higher among
divorced families”).
     Finally, some interviewers, supported by a cadre of
researchers, have no desire to abandon leading ques-
tions and other potentially prejudicial techniques, at
least not completely. This group ardently believes that
“sexually abused children do not readily disclose their
abuse because of shame, guilt, and fear,” Bruck & Ceci,
13 Current Directions in Psychol. Sci. at 229,7 and that
“young children[] [have] difficulty responding to open-
ended questions,” 1 Myers, at §1.15[K]. Therefore, they
insist that leading questions can be necessary to per-
suade genuine abuse victims to disclose their experi-
ences. See id. For example, some researchers have
concluded that “although there is a risk of increased er-
ror with doll-aided directed questions, there is an even
greater risk that not asking about [abuse] leaves the
majority of [abuse] unreported.” Saywitz et al., 59 J.
Consulting & Clinical Psychol. at 690 (emphasis added);

    7
        Ceci and Bruck, among others, dispute the contention that
children do not readily disclose. See, e.g., Bruck & Ceci, 13 Cur-
rent Directions in Psychol. Sci. at 229. Regardless of which side
has the better of this argument, it is sufficient to note here that
some professionals advocate continued use of potentially prejudi-
cial interview techniques.
                            17

see also Lyon, 84 Cornell L. Rev. at 1082 (criticizing re-
searchers who emphasize the weaknesses of children’s
testimony for failing to recognize the need to “minimize
false acquittals as well as false convictions”).
    Even if these researchers’ policy arguments in fa-
vor of limited use of suggestive interview techniques
are correct, there is general agreement in the field that
such an approach produces an increased risk of false
testimony.

    C. False Testimony By Children Is Not Readily
       Detectible
     The social science literature confirms that false tes-
timony produced by suggestion is not immediately rec-
ognizable as such, and that the adversarial criminal jus-
tice system cannot be relied upon to expose such testi-
mony.
     When children bend to suggestion and offer inaccu-
rate accounts, their “false reports are not simply repe-
titions or monosyllabic responses to leading questions.
Under some conditions, their answers go well beyond
the suggestion and incorporate additional details and
emotions.” Ceci & Bruck, 34 Advances in Child Dev. &
Behav. at 261. Likewise, “linguistic markers do not
consistently differentiate true from false narratives
that emerge from repeated suggestive interviews.” Id.
In fact, children offering false testimony motivated by
suggestion can give very compelling accounts, complete
with supplemental detail beyond what was originally
suggested. See Bruck et al., The Nature of Children’s
True and False Narratives, 22 Developmental Rev.
520, 547 (2002) (finding that increases in inaccuracy
brought about through suggestive interview techniques
                           18

correlated with increases in the persuasiveness of those
accounts).
     Moreover, in some cases, children who make false
accusations following suggestive interviews genuinely
and permanently come to believe their own accusations.
See Ackil & Zaragoza, Memorial Consequences of
Forced Confabulation: Age Differences in Susceptibil-
ity to False Memories, 34 Developmental Psychol. 1358,
1369 (1998) (finding that forcing children to provide
false accounts can lead them to recall the false accounts
as true and concluding that “the results certainly sug-
gest that the surest way to preserve the integrity of
children’s memories is to avoid pressuring them to dis-
cuss incidents that may not have transpired”); Ceci &
Bruck, 34 Advances in Child Dev. & Behav. at 62 (“At
times, suggestive interviewing techniques result in
false beliefs. Children who incorporate the suggestions
of their interviewers come to truly believe that they
were victims.”). Because these witnesses fully believe
that they are testifying truthfully, additional question-
ing is unlikely to prompt them to retract their accusa-
tions, and their accounts are unlikely to seem fabri-
cated.
    Research confirms that children who make false
reports following suggestive interviews tell their sto-
ries convincingly. In one study, videotapes were made
of children, some giving true reports and others making
false allegations following suggestive interviews.
When shown the tapes, “[e]xperts who conduct re-
search on the reliability of children’s reports, who pro-
vide therapy to children suspected of having been
abused, and who carry out law enforcement interviews
with children, generally failed to detect which of the
children’s claims were accurate and which were not, de-
spite being confident in their judgments.” Ceci &
                           19

Bruck, 34 Advances in Child Dev. & Behav. at 260-261.
In another study, children ages seven to nine were in-
structed to lie to adult mock jurors, who proved largely
unable to detect the falsehoods. See Quas et al., 12
Child Maltreatment at 61 (discussing Orcutt et al., De-
tecting Deception in Children’s Testimony: Fact Find-
ers’ Ability to Reach the Truth in Open Court and
Closed-Circuit Trials, 25 Law & Human Behav. 339
(2001)).
     Nor can the dangers of false testimony be elimi-
nated by identifying particular types of children as
suggestible. “With the exception of children with
[mental retardation], the scientific evidence suggests
that one cannot, at present, identify individual children
who are most at risk for heightened suggestibility.
Even when effects are found, these are not large and
would not reliably identify or suggest to the court that
a specific child’s profile indicates high or low suggesti-
bility.” Bruck & Melnyk, 18 Applied Cognitive Psy-
chol. at 990; see Warren & Marsil, 65 Law & Contemp.
Probs., No. 1, at 139 (noting that “individual difference
research cannot now, and perhaps never should be,”
used to identify particular children as suggestible).
    Finally, recantation is widely understood to be
normal behavior for genuine abuse victims, and not
simply for accusers whose allegations were a product of
suggestion. This understanding significantly undercuts
what in other instances would be a valuable indicator of
false accusations. While percentages vary widely
across studies, several studies have found that more
than 20% of children who allege abuse later recant. See
London et al., Disclosure of Child Sexual Abuse: What
Does the Research Tell Us About the Ways That Chil-
dren Tell?, 11 Psychol. Pub. Pol’y & L. 194, 216-219
(2005) (collecting studies); Lyon, Scientific Support for
                           20

Expert Testimony on Child Sexual Abuse Accommo-
dation, in Critical Issues in Child Sexual Abuse 107,
128-130 (Conte ed., 2002) (same); see also United States
v. Rouse, 329 F. Supp. 2d 1077, 1080 (D.S.D. 2004)
(summarizing expert witness testimony that “published
studies show the rate of recantation varies from 3% to
27% of children who have reported sexual abuse”).
     According to the most often cited theory for the
cause of such recantation rates, Child Sexual Abuse
Accommodation Syndrome (CSAAS), recantation is a
natural step in the disclosure process in genuine abuse
cases and is brought on by shame, guilt and fear over
disclosure. See Malloy et al., Filial Dependency and
Recantation of Child Sexual Abuse Allegations, 46 J.
Am. Acad. of Child & Adolescent Psychiatry 162, 163
(2007); Bruck & Ceci, 13 Current Directions in Psychol.
Sci. at 229. Indeed, a recent study found a recantation
rate of 23.1% and concluded that recantation is associ-
ated with familial pressure to recant, not false allega-
tions. See Malloy et al., 46 J. Am. Acad. of Child & Ado-
lescent Psychiatry at 162.
    Some researchers contend that expert testimony
should be allowed where an accuser has changed his or
her account because “it is important for jurors to hear
that a surprising number of sexually abused children
retract their allegations.” Lyon, Scientific Support for
Expert Testimony on Child Sexual Abuse Accommo-
dation, at 107. While rules vary across jurisdictions,
“[m]ost courts allow child sexual abuse accommodation
testimony to rebut attacks on a child’s credibility.” Id.
at 110 (citation omitted). Louisiana, for example, allows
expert testimony “for the limited purpose of rebutting
attacks on the victim’s credibility based on inconsistent
statements, limited disclosures, or recantations,” State
v. Foret, 628 So. 2d 1116, 1129 (La. 1993), but prohibits
                            21

testimony “‘directly concerning the particular victim’s
credibility,’” id. at 1130 (quoting State v. Spigarolo, 556
A.2d 112, 123 (Conn. 1989)).
     CSAAS has been criticized by researchers who
suggest that genuine abuse victims recant only rarely
and that studies finding high levels of recantation may
erroneously treat false allegations of abuse as true alle-
gations. See London et al., 11 Psychol. Pub. Pol’y & L.
at 216-219; see also Gersten v. Senkowski, 426 F.3d 588,
611 (2d Cir. 2005) (concluding that CSAAS is not scien-
tifically valid as a “generalized explanation of children’s
reactions to sexual abuse”).
    Regardless of which side has the better of this aca-
demic dispute, death sentences for a crime with such
high recantation rates should not be countenanced. If
the CSAAS theory is correct, the diminished signifi-
cance of a recantation, emphasized to the jury by an
expert witness, adds an arbitrariness that unacceptably
heightens the risk of wrongful executions. On the other
hand, if high recantation levels demonstrate that false
claims are all too common, death sentences for child
rape lack the reliability demanded by the Eighth
Amendment.

    D. Children Have Made False Allegations Of
       Sexual Abuse Because Of Suggestion In Nu-
       merous Actual Cases
    Suggestion does not merely lead children to make
false reports in controlled studies performed in psy-
chology labs; suggestion has led children to make false
criminal accusations, with tragic consequences. For
example, in 1984, Frederico Macias was convicted of
capital felony murder, largely on the testimony of a
nine-year-old witness named Jennifer F. Ceci & Bruck,
Jeopardy in the Courtroom, at 17-18. Testifying at a
                          22

stay of execution hearing four years later, Jennifer de-
scribed the process that had elicited her original accu-
sation:
    Because different people asked me so many dif-
    ferent questions about what I saw, I became
    confused. I thought I might have seen some-
    thing that would be helpful to the police. I
    didn’t realize that it would be so important. I
    thought they wanted me to be certain, so I said
    I was certain even though I wasn’t. Originally,
    I think I told the police just what I saw. But
    the more questions I was asked, the more con-
    fused I became. I answered questions I wasn’t
    certain about because I wanted to help the
    adults.
Id. at 304. After nine years on death row, Macias se-
cured habeas relief. See Martinez-Macias v. Collins,
979 F.2d 1067 (5th Cir. 1992). When the prosecution re-
presented the case, a new grand jury found insufficient
evidence to indict. See Cohen, The Difference A Mil-
lion Makes, Time, June 9, 1995, at 43.
    The precise frequency at which children make false
accusations because of factors like those described by
Jennifer F. is not known and, to the extent it goes un-
detected, is by its very nature unknowable. Cf. Ceci &
Bruck, Jeopardy in the Courtroom, at 31 (noting that
attempts to quantify false allegations of child abuse
overall are likely to omit cases where allegations are
“the result of subtle adult coaching or other faulty in-
terviewing techniques”). It is clear, however, that sug-
gestive interviews have on multiple occasions led chil-
dren to make false allegations of abuse.
    Perhaps most famously, “[d]uring the 1980s, a se-
ries of highly publicized ‘daycare ritual abuse cases’
                           23

erupted across the United States.” Garven et al., 85 J.
Applied Psychol. at 38. In Manhattan Beach, Califor-
nia, for example, children at the McMartin Preschool
who were suggestively interviewed accused seven of
their teachers of sexually abusing them (though no one
was convicted). See id. Many of the daycare abuse
cases in other communities did lead to convictions, but
after the scope of suggestive interviewing techniques
used in the investigations was exposed, more than half
of the convictions were overturned on appeal. See
Hayward & Mashberg, Upheaval in ’80s Put the Spot-
light on Child Abuse, Boston Herald, Dec. 3, 1995, at
23; Rabinowitz, No Crueler Tyrannies 10-21 (2003) (dis-
cussing the conviction and successful appeal of daycare
teacher Margaret Kelly Michaels).
     Numerous other examples outside the daycare con-
text can be found as well. “Wenatchee Washington
seems to have been among the many towns engulfed by
sexual witchhunts in the 1980’s and 1990’s,” and after
forty-three people had been charged with 29,727 counts
of abuse, “few charges stood up in court except against
the government’s own witness.” Devereaux v. Abbey,
263 F.3d 1070, 1083 (9th Cir. 2001) (en banc) (Kleinfeld,
J., concurring in part, dissenting in part). Likewise,
John Stoll spent twenty years in a California prison fol-
lowing his conviction for abusing six children, including
his own son. After four of the children ultimately ac-
knowledged that their trial testimony had been false
and a fifth claimed to have no memory of molestation,
Stoll was released because “improper interview tech-
niques” employed by the investigating officers “created
a substantial risk that [the abuse victims’] trial testi-
mony was unreliable.” Stoll v. County of Kern, No.
1:1:05-cv-01059, 2007 WL 2815032, at *2 (E.D. Cal.
Sept. 25, 2007).
                           24

    Many of the same techniques that can impel chil-
dren who have never been molested to allege abuse can
also cause genuinely abused children to misidentify
their assailant. In particular, research strongly demon-
strates that children are likely to find lineup proce-
dures suggestive and to identify one of the individuals
presented, even if the actual perpetrator is not included
in the lineup. “Although children over the age of five
years typically perform as well as adults when the cul-
prit is present in the lineup, children consistently pro-
duce a much higher rate of false positives in culprit-
absent lineups.” Judges, Two Cheers for the Depart-
ment of Justice’s Eyewitness Evidence: A Guide For
Law Enforcement, 53 Ark. L. Rev. 231, 263 n.125
(2000); see Ross et al., Children’s Susceptibility to Mis-
identifying a Familiar Bystander From a Lineup:
When Younger is Better, 30 Law & Hum. Behav. 249,
250 (2006) (citing studies for the proposition that in
lineups, “younger children tend to make fewer correct
rejections than adults”).
    Justice Blackmun recognized the potential prob-
lems with eyewitness identifications by children in his
dissent in Arizona v. Youngblood, 488 U.S. 51 (1988).
The principal evidence that Larry Youngblood had
raped a young child was the testimony of the ten-year-
old victim who had picked Youngblood out of a photo-
graphic lineup. Id. at 53. Justice Blackmun observed:
“Studies show that children are more likely to make
mistaken identifications than are adults, especially
when they have been encouraged by adults.” Id. at 72
n.8 (1988). Youngblood was exonerated by DNA evi-
dence twelve years after this Court affirmed his convic-
tion. See Whitaker, DNA Frees Inmate Years After
Justices Rejected Plea, N.Y. Times, Aug. 11, 2000, at
A12.
                           25

     Youngblood’s experience is not unique. For exam-
ple, Marvin Mitchell, Jimmy Ray Bromgard, and
Ronnie Bullock were all exonerated by DNA evidence
after serving many years is prison for allegedly sexu-
ally assaulting young children who had identified them
in lineups. See Mitchell v. City of Boston, 130 F. Supp.
2d 201, 204-206 (D. Mass. 2001); State v. Bromgard, 866
P.2d 1140, 1141 (Mont. 1993); People v. Bullock, 507
N.E.2d 44, 45-46 (Ill. App. Ct. 1987); Former Convict
Wins Clemency in Rape Case, Chi. Trib., Mar. 29, 1998,
at C3; Exonerated of Rape, Man Gets $3.5 Million, Chi.
Trib., Jan. 12, 2008, at C4.

III. EVIDENTIARY PROCEDURES EMPLOYED I N MANY
     CHILD RAPE CASES ADD FURTHER UNRELIABILITY
    Despite serious concerns about the reliability of
child testimony, courts and legislatures over several
decades have relaxed evidentiary and procedural re-
quirements in child sexual abuse and rape prosecutions
in an effort to balance competing public policy interests
and to protect victims from further trauma. States
have abolished corroboration rules and categorical bars
against testimony by young children in criminal court
proceedings and have relaxed confrontation procedures
and hearsay standards. See generally Bruck et al., The
Child and the Law, at 777; Anderson, 69 S. Cal. L. Rev.
at 2122-2129. This Court has upheld some of these
modifications in a non-death case, Maryland v. Craig,
497 U.S. at 857 (upholding testimony by closed circuit
television), but these procedural changes are far more
problematic in death-penalty cases.
    Starting with “the irreducible literal meaning of
the [Confrontation] Clause,” for example, this Court
has held that the Sixth Amendment generally “guaran-
tees the defendant a face-to-face meeting with wit-
                               26

nesses appearing before the trier of fact.” Coy v. Iowa,
487 U.S. at 1016, 1021. Craig approved certain limita-
tions on the right to confront child witnesses, holding
that states may use closed circuit television or other
methods of “rigorous adversarial testing” short of
“face-to-face confrontation” where a court makes a
case-specific finding that there is potential for trauma
to child witnesses from testifying in open court. 497
U.S. at 857. Yet as this Court has recognized, limita-
tions on the right to face-to-face confrontation have a
real impact upon “‘the perception as well as the reality
of fairness’” in criminal proceedings. Coy, 487 U.S. at
1019 (citation omitted). “[F]ace-to-face presence may,
unfortunately, upset the truthful rape victim or abused
child; but by the same token it may confound and undo
the false accuser, or reveal the child coached by a ma-
levolent adult.” Id. Even with two-way closed circuit
television, “something is lost in the translation” during
“virtual” confrontations, such that “a defendant watch-
ing a witness through a monitor will not have the same
truth-inducing effect as an unmediated gaze across the
courtroom.” United States v. Bordeaux, 400 F.3d 548,
554 (8th Cir. 2005).8


    8
        In Craig itself, the child witness was questioned by the
prosecutor and defense attorney in a separate room, while the
judge, jury, and defendant observed on video monitor. Id. at 841-
842. At least one court has held that the Confrontation Clause is
satisfied where the defendant had an opportunity to submit writ-
ten interrogatories to be read to a child witness by a neutral and
detached questioner and videotaped prior to trial. See Rangel v.
State, 199 S.W.3d 523, 536 (Tex. App. 2006) (analyzing procedures
under Crawford v. Washington, 541 U.S. 36 (2004)), pet. for review
dismissed as improvidently granted, No. PD-0447-06, 2008 WL
375446 (Tex. Crim. App. Feb. 13, 2008).
                           27

    The reliability of convictions for child rape and sex-
ual abuse is further undermined by the fact that hear-
say statements are a “dominant feature” of such litiga-
tion. Raeder, 82 Ind. L.J. at 1009. The hearsay rule re-
gards out-of-court declarations as inherently suspect
because they were not made under oath or subject to
cross-examination and other trial safeguards. See, e.g.,
Williamson v. United States, 512 U.S. 594, 598 (1994);
Chambers v. Mississippi, 410 U.S. 284, 298 (1973).
Admission of hearsay may also implicate the Confron-
tation Clause; for instance, admission of “testimonial”
hearsay statements made during prior court proceed-
ings, police investigations, and similar circumstances is
permitted under Crawford v. Washington, 541 U.S. 36
(2004), only if the witnesses are available for cross ex-
amination or if the witnesses are deemed “unavailable”
and there was a prior opportunity for cross-
examination.
    Despite these concerns, courts have relaxed hear-
say rules applicable to statements by child witnesses in
several ways. First, they have admitted plainly testi-
monial hearsay by child witnesses who take the stand
but whose lack of memory, communication skills, or
composure to answer even basic questions makes them
functionally unavailable for cross-examination by de-
fendants. See, e.g., People v. Sharp, 825 N.E.2d 706,
712-713 (Ill. App. Ct. 2005) (upholding admission of au-
diotape of and testimony concerning child witness in-
terview with child advocacy worker after witness was
unable to respond to five direct examination questions
about key events); State v. Price, 146 P.3d 1183, 1192-
1193 (Wash. 2006) (en banc) (upholding admission of
child witness’s statement to investigating police officer
where witness repeatedly testified on direct that she
                                 28

forgot defendant’s actions and her previous statements
about them).9
     Although United States v. Owens, 484 U.S. 554, 560
(1988), and California v. Green, 399 U.S. 149, 166-168
(1970), held generally that the Confrontation Clause is
satisfied where a witness is made available for cross-
examination concerning a prior out-of-court statement,
it is questionable whether the ability to challenge a
young (and often emotionally distraught) child’s failure
of memory provides defendants with a “realistic
weapon[]” as those cases envisioned. Owens, 484 U.S.
at 560; see also Green, 399 U.S. at 159, 161 (holding ad-
mission of hearsay permissible “as long as the defen-
dant is assured of full and effective cross-examination”
at trial so as to “afford the trier of fact a satisfactory
basis for evaluating the truth of the prior statement”).
“Unlike the situation when an adult acts on the witness
stand in an way that raises questions about that per-
son’s ability or willingness to proceed, similar conduct

     9
       See also, e.g., State v. Salazar, 166 P.3d 107, 108-110 (Ariz.
Ct. App. 2007) (upholding playing of recorded interview with po-
lice to refresh child witness’s memory after she refused to answer
questions and testified that she did not remember prior state-
ments to police); In re S.L.G., No. A06-1254, 2007 WL 2609801, at
*2, *4 (Minn. Ct. App. Sept. 11, 2007) (unpublished) (upholding
admission of an out-of-court statement to a “forensic interviewer”
where child took stand but was unable to testify as to details of
alleged assault, and holding that statement was not testimonial).
      Similarly, in this case, one piece of critical evidence was a
videotaped interview that the victim L.H. gave to officials at the
Child Advocacy Center. While L.H. took the stand at trial, she
quickly “lost her composure,” and was unable to describe the rape
to the jury. Pet. App. 15a. The Louisiana Supreme Court never-
theless upheld the admission of the videotape, concluding that
L.H. was sufficiently “available” under Crawford. Id. 35a-36a.
                                29

by a child who has apparently been tragically victim-
ized can only be examined delicately, if at all.”
Mosteller, Testing the Testimonial Concept and Excep-
tions to Confrontation: “A Little Child Shall Lead
Them,” 82 Ind. L.J. 917, 921 (2007). Thus, although this
Court has generally rejected arguments that the Con-
frontation Clause guarantees defendants a particular
level of effectiveness in cross-examination, see, e.g.,
Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985) (per
curiam), the admission of hearsay statements by effec-
tively unavailable child witnesses results in the “princi-
pal evil” at which the Confrontation Clause was di-
rected: the “use of ex parte examinations as evidence
against the accused” without an adequate opportunity
to cross-examine the witness either at the time the
statements were made or at trial, Crawford, 541 U.S. at
50, 57.
    Second, courts also regularly admit hearsay in child
abuse and rape cases by finding that the particular
statement—such as an accusatory declaration made by
a child to a family member or medical examiner—
constitutes non-testimonial hearsay under Crawford.
Many such decisions raise serious questions about the
distinction between “testimonial” and “nontestimonial”
statements under Crawford and its progeny. See, e.g.,
State v. Bobadilla, 709 N.W.2d 243, 256 (Minn.) (state-
ment to child-protection worker in presence of law en-
forcement officer was nontestimonial), cert. denied, 127
S. Ct. (2006).10 Moreover, courts and legislatures have

    10
       See also People v. Geno, 683 N.W.2d 687, 692 (Mich. Ct.
App. 2004) (statement to the director of a children’s sexual assault
center held nontestimonial); In re S.L.G., 2007 WL 2609801, at *1,
*4 (statement to advocate described as a “forensic interviewer”
held nontestimonial).
                                 30

broadened traditional hearsay exceptions for purposes
of child sexual abuse and rape prosecutions far beyond
what is permitted with regard to adults. See generally
2 Myers, ch. 7.
    For example, a number of decisions apply the “ex-
cited utterance” exception to statements made by child
witnesses days or even weeks after an alleged incident
of sexual abuse, even though adult statements must
generally be made immediately while still under the
stress of the shocking event. See, e.g., In re D.M., 822
N.E.2d 433, 437 (Ohio Ct. App. 2004) (“The excited-
utterance hearsay exception is treated differently when
the declarant is an alleged sexually abused child; the
test is extremely liberal.”).11 Similarly, courts have re-
laxed various parameters of the “medical treatment”
exception for child witnesses. See, e.g., United States v.
DeNoyer, 811 F.2d 436, 438 (8th Cir. 1987) (overriding
rule that statements regarding abuser’s identity are
inadmissible and emphasizing that “in cases involving
young child witnesses, the administration of justice is
served by the admission of statements made in a more
relaxed environment without the possible harm of [a]
traumatic courtroom encounter”).12 Many states have
     11
        See also, e.g., State v. Thomas, 460 S.E.2d 349, 353 (N.C. Ct.
App. 1995) (holding that a statement made four or five days after
alleged abuse constituted an excited utterance, but ruling admis-
sion erroneous on other grounds); State v. Huntington, 575 N.W.2d
268, 273 (Wis. 1998) (emphasizing the “‘compelling need’” for ad-
mission of hearsay in certain child sexual abuse cases and holding
that statements made two weeks after alleged abuse constituted
excited utterances (citation omitted)).
     12
        See also In re Personal Restraint Pet. of Grasso, 84 P.3d
859, 868-869 (Wash. 2004) (children’s statements to medical pro-
viders admissible without showing that the child understands the
statements to be needed for treatment).
                           31

also enacted hearsay exceptions that are specifically
designed to facilitate admission of out-of-court state-
ments by child witnesses, particularly in sexual abuse
and rape prosecutions. See, e.g., La. Rev. Stat. Ann.
§ 15:440.2-4 (creating a hearsay exception for court-
ordered videotaped statements by children who may
have been witnesses or victims of crime).
     These modifications to traditional evidentiary and
procedural requirements represent a series of difficult
policy choices made by courts and legislatures in favor
of prosecuting child sexual abuse allegations. But
whatever the balance struck on these issues as a matter
of general social policy, these rules take on an added
significance where child rape is treated as a death-
eligible crime. Particularly when combined with the
serious reliability issues raised by child testimony gen-
erally, the cumulative effect of these modifications is to
reduce face-to-face confrontation and opportunities for
effective cross-examination in cases involving child
sexual abuse and rape. As this Court has previously
acknowledged even in the non-death context, the “de-
nial or significant diminution” of confrontation and
cross-examination rights “calls into question the ulti-
mate ‘integrity of the fact-finding process.’” Chambers,
410 U.S. at 295 (citation omitted).

IV. CHILD RAPE CASES, THEREFORE, PRESENT SPECIAL
    AND UNACCEPTABLE RISKS OF WRONGFUL EXECUTION
    Far from satisfying this Court’s demands for
heightened “reliability in decisions involving death,”
Spaziano v. Florida, 468 U.S. 447, 456 (1984), child rape
prosecutions pose heightened risks of wrongful execu-
tion. These reliability problems are comparable to the
ones cited by this Court in Roper v. Simmons and At-
kins v. Virginia, when it held that the Eighth Amend-
                                 32

ment categorically forbids imposition of the death pen-
alty in cases involving defendants under eighteen or
with mental retardation, respectively. For instance,
Atkins found a “special risk of wrongful execution” due
to the fact that defendants with mental retardation
“are typically poor witnesses” and may be prone to
false confession. 536 U.S. at 321. And Roper concluded
that the risks of wrongful execution were unacceptably
high where even “trained psychiatrists with the advan-
tage of clinical testing[,] observation [and] diagnostic
expertise” could not reliably differentiate between ju-
venile offenders whose crimes reflected immaturity and
those whose crimes were the product of antisocial per-
sonality disorder. 543 U.S. at 573.
    While the risks in child rape cases derive from the
particular characteristics of the victims/witnesses
rather than of the defendants, a categorical ban against
the death penalty is also warranted here in light of the
unacceptable risks of wrongful conviction and execu-
tion. Furthermore, one of the perverse effects of the
Louisiana sentencing regime is that admittedly guilty
offenders have strong incentives to plead guilty quickly
to avoid the death penalty, while defendants who stead-
fastly maintain their innocence must risk death to de-
fend themselves at trial.13 Although this criticism may
be lodged against the death penalty in general, it is par-
ticularly troubling when, as has occurred in Louisiana,

     13
        For discussions of empirical evidence regarding plea bar-
gaining and its effect on the arbitrariness of the death penalty, see,
e.g., Hoffman et al., Plea Bargaining in the Shadow of Death, 69
Fordham L. Rev. 2313, 2359-2360 (2001); Liebman, The Overpro-
duction of Death, 100 Colum. L. Rev. 2030, 2097-2098 (2000);
O’Brien, Capital Defense Lawyers: The Good, the Bad, and the
Ugly, 105 Mich. L. Rev. 1067, 1083-1084 (2007).
                             33

the only defendants who face the death penalty are
those who refuse to accept a plea bargain to life impris-
onment. See Pet. Br. 40. As a result, there is an intol-
erably high risk that Louisiana’s sentencing regime will
result in the execution of innocent defendants.

                    CONCLUSION
   For the foregoing reasons, the judgment of the
Louisiana Supreme Court should be reversed.



                              Respectfully submitted.


BARBARA E. BERGMAN            STUART F. DELERY
  Of Counsel                    Counsel of Record
CO-CHAIR, AMICUS              KELLY THOMPSON COCHRAN
  COMMITTEE                   JOSHUA M. SALZMAN
NATIONAL ASSOCIATION OF       WILMER CUTLER PICKERING
  CRIMINAL DEFENSE              HALE AND DORR LLP
  LAWYERS                     1875 Pennsylvania Ave., N.W.
School of Law, MSC11-6070     Washington, D.C. 20006
1 University of New Mexico    (202) 663-6000
Albuquerque, NM 87131
(505) 277-3304


FEBRUARY 2008
                          1a

                     APPENDIX

The Innocence Project amici are:
   The Innocence Project, Inc.
   Center on Wrongful Convictions
   Pace Post-Conviction Project
   Arizona Justice Project
   Midwest Innocence Project
   Innocence Project of Florida, Inc.
   North Carolina Center on Actual Innocence
   Wisconsin Innocence Project
   Texas Innocence Network
   Medill Innocence Project
   Northern Arizona Justice Project
   Innocence Project of New Orleans

				
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